DANIELS, J.-The plaintiff, a Dane, came to this country in 1882, and in December, 1885, he went into the employment of the defendants, at their factory, which was at 156 West Twentyseventh street. He remained in that employment until the 1st of May, 1886, and on that day they commenced to move into the fourth and fifth floors of the next building. The plaintiff was directed to assist, and did so by sweeping away dust and gathering it in barrels. He and another person in the employment of the defendants placed the barrels upon the floor of an open elevator, to take them to the street, where they were unloaded, and the barrels returned to the elevator. The plaintiff, and the person with him also, went upon the elevator, and the latter endeavored to start the elevator, to go to the upper floors again. But the usual efforts for that object proved ineffectual. And then it was discovered that a brick had become wedged between the elevator and a wall rendering it immovable. The other person, with the knowledge, and at the suggestion of the plaintiff, then left the elevator to remove the brick, and he did remove it, when, on account of the rope having been slackened in the previous effort to start it, the elevator at once fell into the basement, a distance of about eight feet, producing serious and lasting injuries to the plaintiff, who had all the while remained in the elevator. This elevator had not been supplied with a safety clutch, which was described to be a bolt, or ball, connected with a heavy spring, kept in tension by a rope which, when slack or broken, permitted the spring to shoot the bolt into the slides in the side posts on which the elevator is guided, locking it firmly and immovably there. And it was for the want of this appliance that the defendants were prosecuted to recover indemnity for the injuries.

But the defendants were not shown to have been aware of the

fact that the clevator had not been provided with this, or any other clutch. And the premises had not been so long in their possession, or subject to their inspection, as to subject them to the charge of negligence for not ascertaining that this was its condition. Their lease was dated the 13th of February, 1886, but their term or right of occupancy did not commence until the day of the plaintiff's injury. And there was no proof that the absence of the clutch was so obvious or conspicuous as to be readily seen by persons examining the lofts for the purpose of hiring which is the most they may be assumed to have done. And if that were not the fact, then the defendants could not be legally charged with negligence on account of the elevator not being supplied with a clutch. In this important respect this case differs from these specially relied upon to support the appeal. For in Corcoran v. Holbrook, 59 N. Y., 517, the elevator was out of repair to the knowledge of the general agent, which the court held to be imputable to the defendants, rendering them liable to the charge of negligence.

In Stringham v. Stewart, 100 N. Y., 516, the defendant was clearly liable for the condition in which the elevator had been maintained and allowed to be used. And in Avilla v. Nash, 117 Mass., 318, the defendant was liable for allowing a defective ele

vator to be used, although that had been forbidden by a rule, but which was systematically disregarded to the knowledge of the defenant. There had been no such use, nor indeed any use of this elevator by persons riding in it to the knowledge of either of the defendants. And at the left side of the street entrance to the elevator a sign was up, forbidding persons riding in this elevator, which was sufficiently placed and large enough in its lettering to be observed by persons proposing to use the elevator. And although the plaintiff was a Dane, and not acquainted with the English language, when he came into the country in 1882, it may be assumed, in the absence of evidence to the contrary, that he had become sufficiently conversant with the language to enable him to read and understand this sign on the first of May, 1886.

By the lease to the defendants the elevators were to be used for freight only. And the fact that another elevator had been used in the other building by the workmen passing up and down, furnished no ground for assuming that this one might be so used, especially as this restriction of its use had been inserted in the lease.

The general rule undoubtedly is, as the plaintiff's counsel has insisted upon it, that the employer is bound to observe reasonable care and attention in providing for the safety of the persons employed in using the apparatus and machinery provided for them. Washington, etc. R. R. Co. v. McDade, 135 U. S., 554. But in this case the evidence did not prove that the defendants had omitted the observance of this care or that they knew of, or in any manner sanctioned the use of this elevator by their employees. There were no facts disclosed at the trial which would have sustained a recovery by the plaintiff.

The judgment should, therefore, be affirmed.

VAN BRUNT, P. J., concurs; BRADY, J., dissents.

JOHN H. STALLMAN et al., App'lts, v. AGNES L. KIMBERLY et al., Resp'ts.

(Supreme Court, General Term, First Department, Filed October 24, 1890.) COSTS-EXTRA ALLOWANCE-DISCONTINUANCE.

Plaintiffs brought three actions of replevin, which involved a construction of the warehousemen's act. It was stipulated that the second action be tried and the others abide the final result thereof, and that an extra allowance of five per cent. on the value of the goods be made in such action. A judgment in favor of plaintiffs in that action was reversed and the allowance provided for granted. The first action was then discontinued on payment of costs, and leave granted to discontinue this action on payment of costs and an extra allowance. Held, no error.

APPEAL from an order making an additional allowance of costs. Preston Stevenson, for app'lts; Sherman Evarts, for resp'ts.

DANIELS, J.-The plaintiffs commenced three actions of replevin to recover the possession of personal property. Their right to maintain the actions depended upon the construction to be given to the act concerning warehousemen and their storage of goods.

The second action alone was tried and a verdict recovered in favor of the plaintiffs, and it was stipulated that the other two

actions should abide the final result of the action so tried, and that an additional allowance of five per cent. upon the value of the goods should be made in that action.

The general term set aside the plaintiffs' recovery, and a report of the decision has been made in 53 Hun, 531; 24 N. Y. State Rep., 787. An appeal was taken to the court of appeals where this decision was affirmed, and an allowance was obtained by the defendants pursuant to the stipulation. The first action was discontinued upon the payment of the costs, and an application was made to the court for leave to discontinue this action, and that leave was given upon the payment of costs, together with an allowance amounting to $267.

That an allowance may be made after issue joined upon the discontinuance of an. action follows from the language of § 3253 of the Code of Civil Procedure, and it has been so understood by the courts. Coffin v. Coke, 4 Hun, 616; Bright v. Milwaukee, etc., R. R., 1 Abb. N. C., 14; Robins v. Gould, id., 133; Society of New York Hospital v. Coe, 15 Hun, 440.

That the case was a difficult and extraordinary one has not been denied. It depended, as the other two also did, upon the construction which should be placed upon this act of the legislature.

The value of the property recovered in the action which was tried was the sum of $1,820.70, and the allowance accordingly was necessarily small in its amount.

In this action the value of the property in dispute was very much larger, and the court, considering the nature of the litigation and of its dependence upon the construction of this act, made the further allowance in this action, as being no more than an adequate amount to compensate the defendants for their services in resisting the litigation.

It was probably intended by the order in this action to increase the allowance beyond the amount allowed in the second action to such a sum as would appear to correspond with the value of the property involved and the question upon which the right to it depended. There was nothing unreasonable in making the addition which the court did in this action in this manner to the allowance in the preceding suit, and the order should be affirmed, with ten dollars costs besides the disbursements.

VAN BRUNT, P. J., and BRADY, J., concur.

MARTHA A. FERGUSON et al., Pl'ffs, v. MARY ISABELLA NEILSON, Def't.

(Supreme Court, General Term, First Department, Filed October 24, 1890.) JURISDICTION-ACTION BETWEEN NON-RESIDENTS.

Unless special reasons therefor are shown to exist, the courts of this state will not retain jurisdiction of and determine actions between parties residing in another state for personal injuries received in that state.

MOTION for new trial upon exceptions ordered to be heard in the first instance at the general term.

J. M. Bowers, for motion; J. L. Hill, opposed.

VAN BRUNT, P. J.-All the parties to this action were and are residents of the state of Rhode Island, and the action is brought for personal injuries sustained by the plaintiff through the alleged negligence of the defendant at Newport, Rhode Island.

Under these circumstances the court was asked to refuse to entertain jurisdiction of the action. The court denied this request, and, although holding that the parties were residents of Rhode Island, submitted the other questions of fact to the jury, reserving the question arising from the fact that both parties were residents of Rhode Island to be disposed of by the general term, if there should be a verdict for the plaintiff.

It seems to be clear that the court erred in denying the request of the defendant to refuse to proceed with the action. It is the well settled rule of this state that unless special reasons are shown to exist which make it necessary or proper to do so, the courts will not retain jurisdiction of and determine actions between parties residing in another state for personal injuries received in that state. Burdick v. Freeman, 46 Hun, 138; 10 N. Y. State Rep., 756, and cases there cited.

The reason of the rule is obvious; because the courts of this state should not be vexed with litigations between non-residents over causes of action arising outside of our own territorial limits. Our courts are not supported by the people for any such purpose. As was said in the case of Robinson v. Oceanic Navigation Co., 112 N. Y., 315; 20 N. Y. State Rep., 741, every rule of comity and natural justice and convenience is satisfied by giving redress in our courts to non-resident litigants when the cause of action arose or the subject-matter of the litigation is situated within this state.

That the rule above stated is the one which has obtained in this state seems to be conceded by the counsel for the plaintiffs, for he says that although the court might not have been bound to proceed to the determination of the issues, it may do so in its discretion, and this discretion having been exercised in plaintiffs' favor, it ought not to be overruled on review.

Upon the contrary, the record shows that no discretion whatever was exercised by the court below, but the question as to whether this motion should have been granted was expressly reserved for the general term.

It al

But even if the court below had exercised its discretion this court upon appeal had the right to review it, and if the exercise of the discretion was against the settled policy of the state it would be its duty to reverse the judgment for that cause. ready appears that it is against the settled policy of the state to permit our courts to be used by non-residents for the redress of personal injuries received in the state of their domicil unless special reasons are shown therefor. None were attempted to be shown in the case at bar.

The exceptions should, therefore, be sustained and the motion for new trial granted, with costs to the defendant to abide the

event.

DANIELS and BRADY, JJ., concur.

THOMAS KELLY, Resp't, v. THE FORTY-SECOND STREET, MANHATTANVILLE, ETC., R. R. Co., App'lt.

(Supreme Court, General Term, First Department, Filed October 24, 1890.) 1. MASTER AND SERVANT-NEGLIGENCE.

The law exacts from the employer only the exercise of reasonable care and intelligence for the protection and safety of the persons employed, and when that is observed the happening of what are at most only possible accidents is part of the risk of the employment.

2. SAME.

Plaintiff was a machinist in the employ of defendant and was called upon to remove the cap from a force pump which had a short time before been purchased to apply whitewash and which had become clogged. Upon loosening the cap the whitewash was blown into his face and eyes by the compressed air, causing injury to and substantial loss of one of his eyes. The apparatus was selected for defendant by a person who had experience in such matters; no defects were visible and there was no evidence that there was danger in the removal of the cap being attended with or followed by an explosion. Held, that no negligence on the part of defendant was shown, and that the complaint should have been dismissed.

APPEAL from a judgment on the verdict of a jury and from an order denying a new trial.

Wm. Č. Trull and I. Gerald Irwin, Jr., for app'lt; John Hardy, for resp't.

DANIELS, J.-The verdict was recovered for the damages the plaintiff sustained from an injury to and substantial loss of one of his eyes by an accident which occurred while he was in the employment of the defendant. He did machinist's work on the running gear of the company's cars. A few days before the accident the company purchased a force pump to be used in applying whitewash to its premises. It had been used for that object when it became clogged or obstructed and the plaintiff was sent for to remove a cap over the apparatus, to permit it to be again placed in working order. And as he was engaged in doing that and when he had loosened one of the screws holding the cap in its place, the whitewash was blown into his face and eyes by the compressed air, causing the injury which has been made the subject of complaint. The evidence sufficiently tended to prove that the service was being performed under the directions of the defendant's superintendent to make that a proper question of fact for the jury. And as he seems to have had the entire control and management under the directors of the practical part of the company's business, the action might very well be maintained for the want of care or negligence on his part producing the accident. The important inquiry, therefore, must be whether there was any want of reasonable care attributable to him in the directions given to the plaintiff to render this service.

The pump was manufactured by a company engaged in that business, and was subjected to the ordinary test to discover whether it was in any respect defective; and it was selected after that for the defendant by a person who had an acquaintance derived from experience in the use of the same apparatus. There